Common use of Defense Clause in Contracts

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Party.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to pay, compromise or defend (with the expenses incurred by the Indemnifying Party in connection therewith for its own account) by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, with the expense of the Indemnified Party being part of the Loss for which the Indemnified Party is entitled to indemnification pursuant to the terms of this Agreement, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. However, if within 30 days of receiving a notification from the Indemnifying Party that the Indemnifying Party does not elect to defend a Third Party Claim, the Indemnified Party fails to notify the Indemnifying Party that the Indemnified Party is electing to pay, compromise or defend the claim or notifies the Indemnifying Party that it does not elect to pay, compromise or defend the claim, then the Indemnifying Party may elect to pay, compromise or defend the claim by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), with the expenses incurred by the Indemnifying Party for the account of the Indemnified Party but part of the Loss for which the Indemnified Party is entitled to indemnification pursuant to the term by this Agreement. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other; provided, however, that (i) consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and (ii) if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall have the right make available to be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (a) The the Indemnifying Party shall acknowledges to the Indemnified Party in writing, within fifteen days after receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the rightfinancial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, at (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not, in the good faith judgment of the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its expense counsel and at its electionown expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume control the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the negotiationIndemnifying Party, settlement which consent may not be unreasonably withheld, conditioned or delayed provided the Indemnified Party receives a full and complete release. If the Indemnified Party assumes the defense of the Claim through counsel of its choice. In such eventclaim, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements expenses of such counsel shall be paid counsels retained by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by entitled to participate in (but not control) the results obtained by defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party with respect defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the Claim. If any Claim is of a nature such evidence that the Indemnified Party did not defend or settle such third-party is required by applicable law claim in a reasonably prudent manner. The parties agree to make a payment render, without compensation, to any third party with respect each other such assistance as they may reasonably require of each other in order to insure the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment proper and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount adequate defense of any liability of the Indemnified Party under the Claim in respect of which such payment was madeaction, as finally determinedsuit or proceeding, is less than the amount which was paid by the Indemnifying Party whether or not subject to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyindemnification hereunder.

Defense. (a) The Indemnifying If a Third Party shall have the rightClaim is made against an Indemnified Party, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, then the Indemnifying Party shall reimburse be entitled to participate in the Indemnified defense of the Third Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of Claim and, if the Indemnifying Party so chooses, to assume such control shall be made within ninety (90) days the defense of receipt the Third Party Claim. If the Indemnifying Party so elects to assume the defense of notice of a Third Party Claim, failing which then, for so long as the Indemnifying Party defends the Third Party Claim, the Indemnifying Party shall be deemed to have elected acknowledged its indemnification obligations under this Article 1 with respect to such Third Party Claim, and the Indemnifying Party shall not be liable to assume such controlthe Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim. If the Indemnifying Party elects to assume assumes such controldefense, then the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses defense of such the Third Party Claim and to retain employ counsel, at its own expense, separate from the counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid employed by the Indemnified Party unless Indemnifying Party, it being understood, however, that the Indemnifying Party consents to shall control such defense, including any settlement or compromise of the retention Third Party Claim, provided that Parent shall not settle or compromise any Third Party Claim arising solely as a result of such counsel a breach of any representation or unless the named parties to any action warranty for an amount in excess of Parent’s aggregate indemnification obligations under this Article 1, as set forth in Section 8.1(b)(iii), without Buyer’s written consent, which consent may not be unreasonably withheld, delayed or proceeding include both conditioned. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense of the Third Party Claim. Such cooperation shall include the retention and (upon the Indemnified Party and a representation of both Indemnifying Party’s request) the provision to the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due of records that are reasonably relevant to the actual or potential differing interests between them (such as the availability Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of different defenses)any material provided. If the Indemnifying Party, having elected within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume such control, thereafter defense of the Third Party Claim or at any time fails to defend the Third Party Claim within a reasonable period of timeactively and in good faith, then the Indemnified Party shall (upon further notice to the Indemnifying Party) have the right to undertake the defense of the Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume such controldefend or settle a Third Party Claim, and the Indemnifying Party shall be bound by will pay the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or reasonable attorneys’ fees and related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability out-of-pocket expenses of the Indemnified Party under the in defending or settling a Third Party Claim in with respect of to which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party is obligated to provide indemnification hereunder, where the Indemnified Partyremedy sought is reasonably expected to have a Material Adverse Effect; provided, however, that in any such event the Indemnified Party shall, promptly after receipt will not settle the Third Party Claim without the prior written consent of the difference from the third party, pay the amount of such difference to the Indemnifying Party, which consent may not be unreasonably withheld, delayed or conditioned.

Defense. (a) The If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shall be entitled to participate therein and defend any action or proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity, and the Indemnifying Party shall have the right, at right to conduct and control the defense subject to the Indemnified Party’s approval in writing of outside counsel selected by the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party of its expense and at its election, election to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventclaim or action, the Indemnifying Party shall reimburse not be liable to the Indemnified Party under this Section 11.3 for all any reasonable legal or other expenses subsequently incurred by the Indemnified Party's Party in connection with the defense thereof other than reasonable out-of-pocket expenses as a result costs of such assumptioninvestigation. The election of In any action defended by the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed and consulted with respect to represented by its own counsel at its own expense unless (1) the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements employment of such counsel shall be paid have been authorized in writing by the Indemnified Party unless Indemnifying Party; or (2) the Indemnifying Party consents shall not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the retention defense of such counsel or unless action; in each of such cases such fees and expenses shall be paid and advanced by the Indemnifying Party. In addition, if the named parties to any action such action, suit or proceeding (including any impleaded parties) shall include both such Indemnified Party and Indemnifying Party, and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from, or additional to, those available to the Indemnifying Party, and if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnified Party, and the Indemnified Party may participate in the defense of such action, suit or proceeding and a representation of both the Indemnifying Party such fees and the Indemnified Party expenses shall be paid and advanced by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party; it being understood, having elected to assume such controlhowever, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and that the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be bound by liable for the results obtained by the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel for all such Indemnified Party). The Indemnifying Party with respect will not, without Indemnified Party’s written consent, settle or compromise any indemnifiable claim or consent to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount entry of any liability judgment in respect thereof unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party under the Claim from all liability in respect of such indemnifiable claim. The parties shall cooperate in the defense of all third party claims which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party may give rise to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyindemnifiable claims hereunder.

Defense. (a) The Indemnifying Party shall have the rightIf any claim, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventdemand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shall reimburse shall, upon the written request of the Indemnified Party, defend any actions or proceedings brought against the Indemnified Party for all in respect of matters embraced by the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claimindemnity, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, but the Indemnified Party shall have the right to be informed conduct and consulted with respect to control the negotiationdefense, compromise or settlement or defenses of such any Indemnifiable Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by if the Indemnified Party unless chooses to do so, on behalf of and for the account and risk of the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party who shall be bound by the results result so obtained by to the extent provided herein; provided, however, that the Indemnified Party with respect shall not settle or compromise any Indemnifiable Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If, after a request to the Claim. If defend any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations action or related legal proceedingsproceeding, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by neglects to defend the Indemnified Party, reimburse a recovery against the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim latter suffered by it in respect of which such payment was made, as finally determinedgood faith, is less than conclusive in its favor against the amount which was paid by Indemnifying Party; provided, however, that, if the Indemnifying Party to has not received reasonable notice of the action or proceeding against the Indemnified Party, or is not allowed to control its defense, judgment against the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to is only presumptive evidence against the Indemnifying Party. The parties shall cooperate in the defense of all third party claims which may give rise to Indemnifiable Claims hereunder. In connection with the defense of any claim, each party shall make available to the party controlling such defense, any books, records or other documents within its control that are reasonably requested in the course of such defense.

Defense. (a) The Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right, at its expense and at its election, right (exercisable by written notice to assume control the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the negotiationThird Party Claim) to elect to conduct and control, settlement and defense of the Claim through counsel of its choice. In such eventchoosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall reimburse provide indemnification to the Indemnified Party for all in respect thereof; provided, however, that the Indemnified Party's reasonable out-of-pocket expenses as a result Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such assumption. The election 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use of counsel selected by the Indemnifying Party to assume represent the Indemnified Party would present such control shall be made within ninety counsel with an actual or potential conflict of interest, or (90D) days of receipt of notice of Claimthe Third Party Claim is for injunctive, failing which equitable or other non-monetary relief against the Indemnifying Party shall be deemed to have elected not to assume Indemnified Party, then in each such control. If the Indemnifying Party elects to assume such control, case the Indemnified Party shall have the right to be informed and consulted control the defense, compromise or settlement of the Third Party Claim with respect to the negotiation, settlement or defenses counsel of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party consents to the retention Claim, from and after delivery of such counsel or unless the named parties to any action or proceeding include both a Claim Notice, the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such controlshall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the Indemnifying defense or prosecution of such Third Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature , including furnishing such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal records, information and testimony and attending such conferences, discovery proceedings, the Indemnified Party hearings, trials and appeals as may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid be reasonably requested by the Indemnifying Party to the Indemnified Party, or the Indemnified Party shallin connection therewith. In addition, promptly after receipt the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the difference from status thereof and shall consider in good faith any recommendations made by the third party, pay the amount of such difference to the Indemnifying Partynon-controlling party with respect thereto.

Defense. (a) The Subject to the limitations set forth in this Section 10.6(b), the Indemnifying Party shall have the rightright to elect to conduct and control the defense, compromise or settlement of any Third Party Claim with counsel of its choice reasonably acceptable to the Indemnified Party and at its expense the Indemnifying Party’s sole cost and expense; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its electionsole cost and expense. Notwithstanding the foregoing, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, if (i) the Indemnifying Party shall reimburse not have given written notice (A) of its election to conduct and control the defense of the Third Party Claim and (B) that the Indemnifying Party agrees, on behalf of all Indemnifying Parties, that the Third Party Claim is indemnifiable hereunder within thirty (30) days after the Indemnified Party for all has given notice thereof, (ii) the Indemnified Party's reasonable out-of-pocket expenses as a result Party shall reasonably determine in good faith, after consultation with its outside counsel, that use of such assumption. The election of counsel selected by the Indemnifying Party to assume represent the Indemnified Party would present such control shall be made within ninety (90) days counsel with a conflict of receipt of notice of Claim, failing which interest or that the Indemnified Party has material defenses or counterclaims available to it that are not available to the Indemnifying Party shall (and that cannot be deemed to have elected not to assume such control. If utilized by the Indemnifying Party elects on behalf of the Indemnified Party), (iii) the Indemnified Party is not reasonably diligently defending such Third Party Claim, (iv) solely with respect to assume any indemnification claim pursuant to Section 10.2(a) or Section 10.3(a) (other than with respect to a breach of a Fundamental Representation), the Losses sought and reasonably likely to be suffered or incurred in such controlThird Party Claim are reasonably expected to be more than two times the amount that the Indemnifying Party is potentially liable for with respect to such Third Party Claim taking into account Section 10.4(b) or (v) the Third Party Claim is for injunctive relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to be informed and consulted with respect to control the negotiationdefense, compromise or settlement or defenses of such the Third Party Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If at the Indemnifying Party’s sole cost and expense, having elected not to assume such controlexceed one law firm in the United States and one firm in any foreign jurisdiction, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyif applicable.

Defense. (a) The Indemnifying If a Third Party shall have Claim is made against the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventIndemnified Party, the Indemnifying Party shall reimburse be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume and thereafter actively and in good faith defend the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for all legal expenses subsequently incurred by the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of Party in connection with the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such controldefense thereof. If the Indemnifying Party elects to assume assumes such controldefense, then the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses of such Claim defense thereof and to retain employ counsel, at its own expense, separate from the counsel to act on its behalfemployed by the Indemnifying Party, but it being understood, however, that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and disbursements expenses of such counsel shall be paid employed by the Indemnified Party unless for any period during which the Indemnifying Party consents to has not assumed the retention of defense thereof or actively and in good faith defend such counsel or unless the named parties to any action or proceeding include both Third Party Claim. If the Indemnifying Party chooses to defend any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the Indemnified Party and a representation of both Indemnifying Party’s request) the provision to the Indemnifying Party of Records that are reasonably relevant to such Third Party Claim, and the Indemnified Party by the same counsel would be inappropriate due making employees available on a mutually convenient basis to the actual or potential differing interests between them (such as the availability provide additional information and explanation of different defenses)any material provided hereunder. If the Indemnifying Party, having elected within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim (but in no event more than five (5) business days), chooses not to assume such control, thereafter defense of a Third Party Claim or fails to defend the such Third Party Claim within a reasonable period of timeactively and in good faith, the Indemnified Party shall be entitled (upon further notice) have the right to assume undertake the defense, compromise or settlement of such controlThird Party Claim or consent to the entry of judgment with respect to such Third Party Claim on behalf of, and for the account and risk of, the Indemnifying Party, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect have no right to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by challenge the Indemnified Party’s defense, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was madecompromise, as finally determined, is less than the amount which was paid by the Indemnifying Party settlement or consent to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyjudgment.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control If any of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party indemnified parties is made or threatened ------- to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed and consulted with respect to the negotiation, settlement a defendant in or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties party to any action or proceeding, judicial or administrative, instituted by any third party for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Section 10 (any such third party action or proceeding include both being referred to as an "Indemnification Claim"), the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due indemnified party or parties shall give prompt notice thereof to the actual indemnifying party; provided -------- that the failure to give such notice shall not affect the indemnified party or potential differing interests between them parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, at its own expense, to assume the defense of any such claim or any litigation to which this Section 10(d) may be applicable, by counsel reasonably satisfactory to the indemnified party or parties; provided, -------- that the indemnified party or parties shall be entitled at any time, at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in such as the availability claim, action or proceeding and to be represented by attorneys of different defenses)its or their own choosing. If the Indemnifying Partyindemnified party or parties elects to participate in such defense, having elected such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such claim or litigation, shall not, except with the approval of each indemnified party, consent to assume such control, thereafter fails to defend entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound giving by the results obtained by the Indemnified Party with claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations claim or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such paymentlitigation. If the amount of any liability Indemnification Claim arises under Section 10(b)(iii), the indemnifying party shall defend the third party claim in the name of the Indemnified Party indemnifying party and pay any amounts to be indemnified under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party section directly to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third claiming party, pay the amount of such difference to the Indemnifying Party.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to this Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (a) The the Indemnifying Party shall acknowledges to the Indemnified Party in writing, within fifteen (15) days after receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the rightfinancial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, at (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not, in the good faith judgment of the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its expense counsel and at its electionown expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume control the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the negotiationIndemnifying Party, settlement and which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the Claim through counsel of its choice. In such eventclaim, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements expenses of such counsel shall be paid counsels retained by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by entitled to participate in (but not control) the results obtained by defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party with respect defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the Claim. If any Claim is of a nature such evidence that the Indemnified Party did not defend or settle such third-party is required by applicable law claim in a reasonably prudent manner. The parties agree to make a payment render, without compensation, to any third party with respect each other such assistance as they may reasonably require of each other in order to insure the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment proper and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount adequate defense of any liability of the Indemnified Party under the Claim in respect of which such payment was madeaction, as finally determinedsuit or proceeding, is less than the amount which was paid by the Indemnifying Party whether or not subject to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyindemnification hereunder.

Defense. In the case of a Claim involving the assertion of a claim by a third party (a) The whether pursuant to a lawsuit or other legal action or otherwise, a “Third-Party Claim”), the Indemnifying Party shall have may, upon written notice to the rightIndemnified Party, at its expense and at its election, to assume take control of the negotiation, settlement defense and investigation of such Third-Party Claim if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such Third-Party Claim. If the Indemnifying Party assumes the defense of the Claim through counsel of its choice. In any such eventThird-Party Claim, the Indemnifying Party shall reimburse select counsel reasonably acceptable to the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of (and separate from counsel to the Indemnifying Party to assume such control shall be made within ninety (90) days if there is any conflict or divergence of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both interest between the Indemnifying Party and the Indemnified Party Party) to conduct the defense of such claims or legal proceedings and, at the sole cost and a representation expense of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to assume a settlement of or the entry of any judgment arising from any such Third-Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such Third-Party Claim, thereafter fails to defend the Claim within a reasonable period of timewith its own counsel and at its own expense; provided, however, that the Indemnified Party shall be entitled to settle any Third-Party Claim involving criminal penalties, civil fines or harm without the consent, but at the expense, of the Indemnifying Party if the Indemnifying Party shall unreasonably fail to do so after being requested to do so by the Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party that it will assume the defense of such controlThird-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such claim from the Indemnified Party: (a) the Indemnified Party may defend against such Third-Party Claim in such manner as it may deem reasonably appropriate, provided that the Indemnified Party shall not consent to a settlement of or the entry of any judgment arising from such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed); and (b) the Indemnifying Party shall be bound by entitled to participate in (but not control) the results obtained by defense of such action, with its counsel and at its own expense. Regardless of which Party shall assume the Indemnified defense of the Third-Party Claim, the Parties agree to cooperate fully with respect one another in connection therewith. Such cooperation shall include the providing of records and information which are relevant to such Third-Party Claim and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process, in each case to the Claim. If any Claim is of a nature such extent that the Indemnified party is required by applicable law Party being requested to provide records and information or to make a payment employees and officers available can do so without waiving any evidentiary privileges to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, it is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyentitled.

Defense. (a) The Indemnifying Party shall have the rightright to direct, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventown choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party shall reimburse the Indemnified Party for all not settle any matter without obtaining the Indemnified Party's reasonable out-of-pocket expenses as prior consent thereto if such settlement provides for any remedy other than the payment of money damages or does not provide for a result full release of the Indemnified Party or, regardless of the terms of such assumption. The election of settlement, if the Indemnifying Party disputes its liability with respect to assume such control shall be made within ninety (90) days of receipt of notice of the Third Party Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume the defense of any such controlclaim or proceeding, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to be informed and consulted with respect to direct, through counsel of its own choosing, the negotiationdefense or settlement of any such action or proceeding; provided, settlement or defenses of such Claim and to retain counsel to act on its behalfhowever, but the fees and disbursements of such counsel shall be paid by that if the Indemnified Party unless assumes the Indemnifying Party consents to the retention defense of any such counsel or unless the named parties to any action claim or proceeding include both the Indemnifying Party pursuant to this Section 11.3 and the Indemnified Party and proposes to settle such claim or proceeding prior to a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due final judgment thereon or to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Partyforego appeal with respect thereto, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, then the Indemnified Party shall be entitled to assume such control, give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in and consent (which consent shall not be bound by unreasonably withheld) to the results obtained by settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the foregoing provisions of this Section 11.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party with respect to and if such dispute is resolved in favor of the Claim. If any Claim is Indemnifying Party by final, nonappealable order of a nature such that court of competent jurisdiction, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified party is required by applicable law Party's defense pursuant to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedingsthis Section 11.3(b), and the Indemnified Party may make such payment and shall reimburse the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party in full for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid all costs and expenses incurred by the Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall make available to the Indemnified Partyparty controlling such defense any books, records or other documents within its control that are reasonably requested in the Indemnified Party shallcourse of or necessary or appropriate for such defense; provided, promptly after receipt of however, that appropriate arrangements are made to safeguard the difference from the third party, pay the amount confidentiality of such difference to the Indemnifying Partymaterials.

Defense. If any claim, demand or liability is asserted by any third party against any Indemnified Party (aa "Third-Party Claim"), the Indemnified Party will (upon notice of said claim or demand) The promptly notify the Indemnifying Party shall have the rightParty, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse defend and/or settle any actions or proceedings brought against the Indemnified Party for all in respect of matters embraced by the indemnity with counsel reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume does not promptly defend or settle any such controlclaims, the Indemnified Party shall have the right to conduct and control any defense or settlement, at the expense of the Indemnifying Party. Except as provided by the preceding sentence, no claim will be informed and consulted with respect settled or compromised without the prior written consent of each party to the negotiation, be affected by such settlement or defenses compromise, which consent shall not be unreasonably withheld. The Indemnified Party shall at all times also have the right to participate fully in the defense at its own expense; provided, however, that the Indemnifying Party shall pay the legal fees of such Claim and to retain one counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by for the Indemnified Party unless if the Indemnifying Third-Party consents to the retention of such counsel or unless the named parties to any action or proceeding include Claim is made both against the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised by counsel that there would be a representation conflict of interest in having the same counsel represent both the Indemnifying Indemnified Party and the Indemnified Indemnifying Party. The parties will cooperate in the defense of all Third-Party by Claims that may give rise to Indemnifiable Claims hereunder. In connection with the same counsel would be inappropriate due defense of any claim, each party will make available to the actual party controlling such defense any books, records or potential differing interests between them (such as other documents within its control that are reasonably requested in the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount course of such difference to the Indemnifying Partydefense.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right and obligation to defend against, negotiate, settle or otherwise deal with any Third-Party Claim in good faith but otherwise in such manner as the Indemnified Party deems appropriate and to be informed represented by counsel of its own choice. The Indemnified Party shall not admit any liability with respect thereto or settle, compromise, pay or discharge the same without the consent of the Indemnifying Party (or, in the case of indemnification under Section 7.1(b), the Company Stockholder Representative), which consent shall not be unreasonably withheld, so long as the Indemnified Party is contesting or defending the same with reasonable diligence and consulted in good faith; provided, however, that the Indemnifying Party may participate in any proceeding with counsel of its choice and at its expense. In the event the Indemnified Party fails to defend against, negotiate, settle or otherwise deal with such Third Party Claim as provided above in this Section 7.3(b), then the Indemnifying Party shall have the right to defend against, negotiate, settle or otherwise deal with the Third Party Claim in good faith and otherwise in such manner as the Indemnifying Party deems appropriate; provided, however, that the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the negotiationThird-Party Claim (A) in the case of a settlement, unless the settlement or defenses includes, as an unconditional term thereof, the giving by the third party of such Claim and to retain counsel to act on its behalf, but the fees and disbursements a release of such counsel shall be paid by the Indemnified Party unless the Indemnifying from all liability in respect of such Third-Party consents Claim (other than pursuant to the retention terms of such counsel the settlement), (B) if the judgment or unless settlement involves any injunctive or other equitable relief, without the named parties to any action or proceeding include both the Indemnifying Party and prior written consent of the Indemnified Party Party, and a representation of both (C) if the Indemnifying Party and the judgment or settlement with respect to an Indemnified Party by involves any amount in excess of the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results indemnification obtained by the Indemnified Party with respect to hereunder, without the Claim. If any Claim is prior written consent of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Party.

Defense. (a) The Indemnifying If a Third Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all is made against the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which then the Indemnifying Party shall be deemed entitled to have elected not participate in the defense thereof and, if the Indemnifying Party so chooses, to assume such controlthe defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such controldefense, then the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses of such Claim defense thereof and to retain employ counsel, at its own expense, separate from the counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid employed by the Indemnified Party unless Indemnifying Party, it being understood, however, that the Indemnifying Party consents to the retention of shall control such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party defense and the Indemnified Party and a representation shall pay the expense of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual his or potential differing interests between them (such as the availability of different defenses)its separate counsel. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of crossclaims or counterclaims relating to such Third Party Claim. Such cooperation shall include, without limitation, the retention, and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party, having elected of records that are reasonably relevant to such Third Party Claim, and making employees of the Indemnified Party available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If, but only if the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume such control, thereafter defense of a Third Party Claim or fails to defend the such Third Party Claim within a reasonable period of timeactively and in good faith, then the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference (upon further written notice to the Indemnifying Party) have the right thereafter to defend, compromise or settle such Third Party Claim.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or #297907 -35- defend such controlThird Party Claim, it shall, within thirty (30) days after receiving notice of the Third Party Claim (ten (10) days if the Indemnified Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise fails to pursue the defense of such Third Party Claim with reasonable diligence, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be paid by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any Third Party Claim (unless the sole relief payable in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and a representation of both the Indemnifying Party and may each participate, at its own expense, in the Indemnified defense of such Third Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. Unless the Parties otherwise agree in writing, each Party shall have the first right, but not the obligation, subject to any intervening rights of the other Party under applicable Law, to defend and control the defense of any Third Party Infringement Action that names such Party as a defendant, using counsel of its own choice, at its sole cost and expense; provided, however, that if a Third Party Infringement Action is […***…], then […***…] shall have the first right, but not the obligation, to defend and control the defense of such Third Party Infringement Action, using counsel of its own choice, […***…]. In any event, each Party may participate in any such Third Party Infringement Action with counsel of its choice at its own cost and expense; provided that the controlling Party shall retain the right to control such Third Party Infringement Action. Without limitation of the foregoing, if the controlling Party finds it necessary or desirable to join the other Party as a party to any such Third Party Infringement Action, such other Party shall execute all papers and perform such acts as shall be reasonably required. If the controlling Party elects (ain a written communication submitted to the other Party within a reasonable amount of time after notice of the Third Party Infringement Action) The Indemnifying not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such Third Party Infringement Action, the controlling Party shall do so within such time periods so that such other Party is not prejudiced by any delays, and such other Party shall have the right, […***…], to conduct and control the defense of such Third Party Infringement Action using counsel reasonably acceptable to the other Party at its expense sole cost and at its electionexpense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such Third Party Infringement Action, including by providing the other Party with copies of all pleadings filed in such action. The controlling Party shall allow the other Party, to assume control of the negotiationextent such other Party is participating in the Third Party Infringement Action, settlement and reasonable opportunity to participate in the defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyclaims.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice to any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed and consulted with respect to direct the negotiation, settlement or defenses defense of such Third Party Claim and to retain counsel to act on its behalfwith the participation of the Indemnifying Party. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and a representation of both the Indemnifying Party and may each participate, at its own expense, in the Indemnified defense of such Third Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right, at its expense and at its election, right (exercisable by written notice to assume control the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the negotiationThird Party Claim) to elect to conduct and control, settlement and defense of the Claim through counsel of its choice. In such eventchoosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall reimburse provide indemnification to the Indemnified Party for all in respect thereof, and (ii) if requested by the Indemnified Party's reasonable out-of-pocket expenses as a result , has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such assumption. The election 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to assume represent the Indemnified Party would present such control shall be made within ninety counsel with an actual or potential conflict of interest, or (90D) days of receipt of notice of Claimthe Third Party Claim is for injunctive, failing which equitable or other non-monetary relief against the Indemnifying Party shall be deemed to have elected not to assume Indemnified Party, then in each such control. If the Indemnifying Party elects to assume such control, case the Indemnified Party shall have the right to be informed and consulted control the defense, compromise or settlement of the Third Party Claim with respect to the negotiation, settlement or defenses counsel of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party consents to the retention Claim, from and after delivery of such counsel or unless the named parties to any action or proceeding include both a Claim Notice, the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such controlshall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the Indemnifying defense or prosecution of such Third Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature , including furnishing such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal records, information and testimony and attending such conferences, discovery proceedings, the Indemnified Party hearings, trials and appeals as may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid be reasonably requested by the Indemnifying Party to the Indemnified Party, or the Indemnified Party shallin connection therewith. In addition, promptly after receipt the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the difference from status thereof and shall consider in good faith any recommendations made by the third party, pay the amount of such difference to the Indemnifying Partynon-controlling party with respect thereto.

Defense. (a) The Indemnifying Party shall have the rightright to direct, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventown choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party shall reimburse the Indemnified Party for all not settle any matter without obtaining the Indemnified Party's reasonable out-of-pocket expenses as prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a result full release of the Indemnified Party or, regardless of the terms of such assumption. The election of settlement, if the Indemnifying Party disputes its liability with respect to assume such control shall be made within ninety (90) days of receipt of notice of the Third Party Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume the defense of any such controlclaim or proceeding, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or if after commencing or undertaking any such defense fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to be informed direct, at the Indemnifying Party's sole cost and consulted with respect to expense, through counsel of its own choosing, the negotiationdefense or settlement of any such action or proceeding; provided, settlement or defenses of such Claim and to retain counsel to act on its behalfhowever, but the fees and disbursements of such counsel shall be paid by that if the Indemnified Party unless assumes the Indemnifying Party consents to the retention defense of any such counsel or unless the named parties to any action claim or proceeding include both the Indemnifying Party pursuant to this SECTION 10.3 and the Indemnified Party and proposes to settle such claim or proceeding prior to a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due final judgment thereon or to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Partyforego appeal with respect thereto, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, then the Indemnified Party shall be entitled to assume such control, give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in and consent (which consent shall not be bound by unreasonably withheld) to the results obtained by settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the foregoing provisions of this SECTION 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party with respect to and if such dispute is resolved in favor of the Claim. If any Claim is Indemnifying Party by final, nonappealable order of a nature such that court of competent jurisdiction, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified party is required by applicable law Party's defense pursuant to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedingsthis SECTION 10.3(b), and the Indemnified Party may make such payment and shall reimburse the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party in full for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid all costs and expenses incurred by the Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall make available to the Indemnified Partyparty controlling such defense any books, records, or other documents within its control that are reasonably requested in the Indemnified Party shall, promptly after receipt course of the difference from the third party, pay the amount of or necessary or appropriate for such difference to the Indemnifying Partydefense.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (A) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (B) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other, provided, however, that consent to settlement or compromise shall not be paid unreasonably withheld by the Indemnified Party unless and provided further, that if the sole settlement relief payable to a Third Party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party consents to may settle such claim without the retention consent of such counsel or unless the named parties to Indemnified Party. In any action or proceeding include both the Indemnifying Party and event, except as otherwise provided herein, the Indemnified Party and a representation of both the Indemnifying Party and may each participate, at its own expense, in the Indemnified defense of such Third Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense and compromise of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention each of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both Party. Notwithstanding the foregoing, neither the Indemnifying Party and nor the Indemnified Party may settle or compromise any claim, (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the same counsel would party settling or compromising such claim) over the objection of the other; provided, however, that consent to settlement or compromise shall not be inappropriate due to unreasonably withheld. In any event, except as otherwise provided herein, the actual or potential differing interests between them (Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such as the availability of different defenses)Third Party Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the results obtained by receipt of appropriate confidentiality agreements. Notwithstanding anything to the Indemnified Party contrary contained in this paragraph (b), in the event prompt action is required with respect to the Claim. If any Claim is defense of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedingsThird Party Claim, the Indemnified Party may make shall, subject to the terms and conditions of this Article IX, have the right to assume the defense of such payment Third Party Claim; provided, however, that in the event that the Indemnifying Party subsequently elects to assume the defense of such Third Party Claim, then the provisions set forth in this paragraph (b) shall be applicable and the Indemnifying Party shall, after demand by subject to the Indemnified Partyterms and conditions of this Article IX, reimburse indemnify the Indemnified Party for such payment. If the amount of any liability of costs and expenses incurred by the Indemnified Party under prior to the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by date the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount assumes control of such difference to the Indemnifying PartyThird Party Claim.

Defense. (a) The Except as otherwise provided herein, an Indemnifying Party shall have the rightmay elect to defend, at its the Indemnifying Party’s own cost and expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, by the Indemnifying Party Party’s own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume defend such controlThird Party Claim, the Indemnifying Party shall, within ten (10) days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the cost and expense of the Indemnifying Party, in the defense of such Third Party Claim; provided that the Indemnified Party is hereby authorized (but not obligated) at any time after giving notice to the Indemnifying Party of such Third Party Claim but prior to receiving such notice from the Indemnifying Party to file any motion, answer or other pleading and to take any other action which the Indemnified Party or its counsel deem reasonably necessary to protect the Indemnified Party’s interests. If any Indemnifying Party elects not to defend the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (and during any other period in which an Indemnifying Party has been given a reasonable opportunity to assume, but has not assumed, the defense of such Third Party Claim) then (i) the Indemnified Party may (without prejudice to any of its rights against an Indemnifying Party), compromise or defend such Third Party Claim and (ii) the reasonable costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable as “Indemnifiable Losses” by the Indemnifying Party pursuant to this Article VI. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall have the right be required to be informed and consulted with respect agree to any settlement, compromise or discharge of a Third Party Claim (1) that relates to the negotiationimposition of monetary damages only, settlement or defenses (2) that the Indemnifying Party has recommended, (3) that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim (without regard to any limitations otherwise applicable hereunder), (4) that releases the Indemnified Party completely and (5) that would not otherwise adversely affect the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to retain counsel to act on its behalf, assume the defense of any Third Party Claim (but shall nonetheless remain liable for the fees and disbursements expenses of such counsel shall be paid incurred by the Indemnified party in defending such Third Party unless Claim as part of the “Indemnified Losses” hereunder) if the Third Party Claim is reasonably likely to result in the imposition of: (i) monetary damages in excess of 200% of the Indemnifying Party’s then remaining maximum liability hereunder or (ii) an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party. An Indemnified Party shall not settle or compromise any Action (to the extent such Indemnified Party is seeking indemnification in respect thereof) without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party consents elects to defend any Action, the Indemnified Party shall make available to the retention Indemnifying Party any Representatives or Information that are reasonably necessary or appropriate for such defense and such Representatives shall, when appropriate, furnish evidence, testimony and other assistance in connection with any such claim. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Parties may each participate, at its or their own expense, in the defense of such Third Party Claim; provided that if in the reasonable opinion of counsel to the Indemnified Party, there exists an actual or unless the named parties to any action potential conflict of interest or proceeding include both differing defenses between the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying with respect to such Third Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying PartyClaim, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by liable for the results obtained by reasonable fees and expenses of counsel to the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, in each jurisdiction for which the Indemnified Party may make determines counsel is required (and such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyamounts shall be deemed “Indemnifiable Losses” hereunder).

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect direct the defense and compromise of such Third Party Claim insofar as it relates to the negotiationIndemnified Party. In such an event, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless to the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party Parties and the Indemnified Party and a representation of both provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the same counsel would party settling or compromising such claim and the settlement or compromise includes a complete release of the other party or parties hereto) over the objection of the other, provided, however, that consent to settlement or compromise shall not be inappropriate due to unreasonably withheld. In any event, except as otherwise provided herein, the actual or potential differing interests between them (Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such as the availability of different defenses)Third Party Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim, and if the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right, at its sole expense and at its electionin each instance, to assume control of participate in the negotiation, settlement and defense of the Third Party Claim through and to employ counsel of its choice. In such eventseparate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall reimburse control such defense, including any settlement or compromise of the Third Party Claim; provided, however, if the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as has been advised by legal counsel that a result joint representation would be inappropriate because of such assumption. The election a conflict of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such controlinterest, the Indemnified Party shall have the right right, at the Indemnifying Party’s expense, to be informed and consulted with respect to participate in the negotiation, settlement or defenses defense of such Third Party Claim and to retain counsel employ its own counsel. However, the Indemnifying Party may not enter into or otherwise consent to act on its behalf, but any settlement or compromise without the fees and disbursements prior written consent of such counsel shall be paid by the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), unless the Indemnifying Party consents to the retention such settlement or compromise (A) includes a complete and unconditional release of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and liability of the Indemnified Party and a representation of both the Indemnifying Party and (B) does not impose any obligations, restrictions or Losses on the Indemnified Party other than solely monetary obligations for which the Indemnified Party will be fully indemnified hereunder by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense of the Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) provision to the Indemnifying Party of records that are reasonably relevant to the Third Party Claim within and the provision of access to employees on a reasonable period mutually convenient basis to provide additional information and explanation of time, the Indemnified any material provided. The Indemnifying Party shall be entitled to assume such control, and control the defense of a Third Party Claim only if (i) the Indemnifying Party shall be bound by the results obtained by provides written notice to the Indemnified Party setting forth an election to so assume the defense within thirty (30) days of receiving the Indemnification Notice relating to a Third Party Claim and an acknowledgment of its obligations to indemnify the Indemnifying Party under this Agreement in respect of such Third Party Claim, (ii) the Third Party Claim seeks solely monetary damages, (iii) the Third Party Claim does not involve criminal allegations, (iv) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently with respect counsel reasonably satisfactory to the ClaimIndemnifying Party (and for which purpose the Parties hereby agree that the counsel listed in Section 13.9 are satisfactory), (v) it is reasonably likely that a judgment, finding or other resolution of the Third Party Claim that is adverse to the Indemnifying Party will not have a material adverse impact on the Business of the Company or Buyer, and (vi) the Indemnifying Party has not determined in good faith that a joint representation would be inappropriate because of a conflict of interest. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, Indemnifying Party (x) notifies the Indemnified Party may make such payment and in writing that it elects not to assume or to continue control the Indemnifying defense of the Third Party shallClaim or (y) is otherwise not entitled to assume or control the defense of the Third Party Claim, after demand by the Indemnified Party, reimburse then the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference shall (upon further written notice to the Indemnifying Party) have the right to undertake the defense of the Third Party Claim; provided that the Indemnified Party shall not settle or compromise, or enter into any agreement to settle or compromise, any Third Party Claim without the prior 60 written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed).

Defense. (a) The If a Third-Party Claim is made against the Indemnified Party, then the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, at its expense and at its electionif the Indemnifying Party so chooses, to assume control of the negotiation, settlement defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume the defense of a Third-Party Claim, then the Claim through Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of its choice. In such eventThird-Party Claim, the Indemnifying Party shall reimburse provide to the Indemnified Party for an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnified Indemnifying Party's reasonable out-of-pocket expenses as a result ’s assumption of the defense of such assumption. The election Third-Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such control shall be made within ninety (90) days of receipt of notice of Third-Party Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume assumes such controldefense, then the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses of such Claim defense thereof and to retain employ counsel, at its own expense, separate from the counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid employed by the Indemnified Party unless Indemnifying Party, it being understood, however, that the Indemnifying Party consents to the retention of shall control such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)defense. If the Indemnifying Party chooses to defend any Third-Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third-Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party has not within ten (10) Business Days after receipt of an Indemnification Notice relating to a Third-Party Claim, having elected chosen to assume such control, thereafter defense of a Third-Party Claim or fails to defend the such Third-Party Claim within a reasonable period of timeactively and in good faith, then the Indemnified Party shall be entitled (upon further written notice) have the right to assume defend and, subject to Section 8.05(c), compromise or settle of such control, and Third-Party Claim or consent to the Indemnifying Party shall be bound by the results obtained by the Indemnified Party entry of judgment with respect to such Third-Party Claim, in each case at the Claim. If any Claim is cost and expense of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Party.

Defense. (a) The Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right, at its expense and at its election, right (exercisable by written notice to assume control the Indemnified Party within fifteen (15) days after the Indemnified Party has delivered a Claim Notice of the negotiationThird Party Claim) to conduct and control, settlement and defense of the Claim through counsel of its choice. In such eventchoosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, the defense, compromise or settlement of the Third Party Claim; provided, that the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall reimburse provide indemnification to the Indemnified Party for all in respect thereof, and (ii) if requested by the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election , has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume conduct and control the defense of the Third Party Claim, the Indemnified Party may participate therein through separate counsel chosen by it and at its own cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such control15-day period, (B) the Indemnifying Party shall fail to conduct such defense diligently, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then the Indemnified Party shall have the right to be informed and consulted control the defense, compromise or settlement of the Third Party Claim with respect to the negotiation, settlement or defenses counsel of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless choice at the Indemnifying Party consents to the retention Party’s sole cost and expense. In any event, from and after delivery of such counsel or unless the named parties to any action or proceeding include both a Claim Notice, the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such controlshall, and shall cause their respective affiliates and representatives to, cooperate fully in connection with the Indemnifying defense or prosecution of any Third Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature , including furnishing such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal records, information and testimony and attending such conferences, discovery proceedings, the Indemnified Party hearings, trials and appeals as may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid be reasonably requested by the Indemnifying Party to the Indemnified Party, or the Indemnified Party shallin connection therewith. In addition, promptly after receipt the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the difference from status thereof and shall consider in good faith any recommendations made by the third party, pay the amount of such difference to the Indemnifying Partynon-controlling party with respect thereto.

Defense. (a) The An Indemnifying Party shall will have the rightsole right to control the defense and financial settlement of any Losses for which it is providing indemnification hereunder, including the selection of legal counsel, except that the Indemnifying Party must not agree to any non-financial settlement or term of settlement (including but not limited to any acknowledgement of liability or responsibility) of any Losses without the prior consent of the relevant Indemnified Party(ies). The Indemnified Party(ies) will, at the Indemnifying Party’s sole cost and expense, cooperate with the Indemnifying Party as reasonably requested in the defense of the Losses, including but not limited to making relevant representatives and documents available to the Indemnifying Party. Nothing herein prevents an Indemnified Party, prior to the resolution of any Losses, from retaining its expense and at its election, to assume own legal counsel for the purpose of assuming control of the negotiationIndemnified Party’s defense; however, settlement the Indemnified Party must immediately notify the Indemnifying Party in writing of its assumption of the defense, and its assumption thereof will relieve the Indemnifying Party of any further indemnification and defense obligations on behalf of the Claim through counsel Indemnified Party hereunder as of its choicethe date of such notice. In such eventNotwithstanding anything to the contrary in this Section 3.2, with respect to an Indemnified Party that is a Federal Institution, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed control the defense and consulted with respect financial settlement of Losses, including the selection of legal counsel, as provided herein, except to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and extent that a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified third party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by defend the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to requirement may limit or preclude the Indemnifying Party’s obligation to defend, but which shall not affect the Indemnifying Party’s obligations to indemnify and hold harmless hereunder.

Defense. (a) The Indemnifying Party shall have the rightright to direct, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventown choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party shall reimburse the Indemnified Party for all not settle any matter without obtaining the Indemnified Party's reasonable out-of-pocket expenses as prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a result full release of the Indemnified Party or, regardless of the terms of such assumption. The election of settlement, if the Indemnifying Party disputes its liability with respect to assume such control shall be made within ninety (90) days of receipt of notice of the Third Party Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume the defense of any such controlclaim or proceeding, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to be informed direct, at the Indemnifying Party's sole cost and consulted with respect to expense, through counsel of its own choosing, the negotiationdefense or settlement of any such action or proceeding; provided, settlement or defenses of such Claim and to retain counsel to act on its behalfhowever, but the fees and disbursements of such counsel shall be paid by that if the Indemnified Party unless assumes the Indemnifying Party consents to the retention defense of any such counsel or unless the named parties to any action claim or proceeding include both the Indemnifying Party pursuant to this Section 10.3 and the Indemnified Party and proposes to settle such claim or proceeding prior to a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due final judgment thereon or to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Partyforego appeal with respect thereto, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, then the Indemnified Party shall be entitled to assume such control, give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in and consent (which consent shall not be bound by unreasonably withheld) to the results obtained by settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party with respect to the Claim. If any Claim and if such dispute is resolved in favor of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shallby final, after demand by nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the indemnified Party shall reimburse the Indemnified Indemnifying Party in full for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid all costs and expenses incurred by the Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall make available to the Indemnified Partyparty controlling such defense any books, records or other documents within its control that are reasonably requested in the Indemnified Party shall, promptly after receipt course of the difference from the third party, pay the amount of or necessary or appropriate for such difference to the Indemnifying Partydefense.

Defense. (a) If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall have be liable for the right, at its expense reasonable fees and at its election, expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume control of the negotiation, settlement and defense of a Third Party Claim, then the Claim through Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of its choice. In such eventThird Party Claim, the Indemnifying Party shall reimburse provide to the Indemnified Party for an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnified Indemnifying Party's reasonable out-of-pocket expenses as a result ’s assumption of the defense of such assumption. The election Third Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such control shall be made within ninety (90) days of receipt of notice of Third Party Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume assumes such controldefense, then the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses of such Claim defense thereof and to retain employ counsel, at its own expense, separate from the counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid employed by the Indemnified Party unless Indemnifying Party, it being understood, however, that the Indemnifying Party consents to the retention of shall control such counsel or unless the named parties to any action or proceeding include both defense. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the Indemnified Party and a representation of both Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third Party Claim, and the Indemnified Party by the same counsel would be inappropriate due making employees available on a mutually convenient basis to the actual or potential differing interests between them (such as the availability provide additional information and explanation of different defenses)any material provided hereunder. If the Indemnifying Party, having elected within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume such control, thereafter defense of a Third Party Claim or fails to defend the such Third Party Claim within a reasonable period of timeactively and in good faith, then the Indemnified Party shall be entitled (upon further notice) have the right to assume defend, compromise or settle of such control, and Third Party Claim or consent to the Indemnifying Party shall be bound by the results obtained by the Indemnified Party entry of judgment with respect to the such Third Party Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Party.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the reasonable costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such 36 42 Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect direct the defense and compromise of such Third Party Claim insofar as it relates to the negotiationIndemnified Party. In such an event, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless to the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party Parties and the Indemnified Party and a representation of both provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any Claim (except that the Indemnifying Party may settle or compromise a Claim if the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the same counsel would party settling or compromising such Claim and the settlement or compromise includes a complete release of the other party or parties hereto) over the objection of the other, provided, however, that consent to settlement or compromise shall not be inappropriate due to unreasonably withheld. In any event, except as otherwise provided herein, the actual or potential differing interests between them (Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such as the availability of different defenses)Third Party Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany Claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Subject to the limitations set forth in this Section 11.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right, at its expense and at its election, right (exercisable by written notice to assume control the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the negotiationThird Party Claim) to conduct and control, settlement and defense of the Claim through counsel of its choice. In such eventchoosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall reimburse provide indemnification to the Indemnified Party for all in respect thereof, and (ii) if requested by the Indemnified Party's reasonable out, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Loss and Expense resulting from the Third Party Claim; provided, that the Indemnified Party may participate, through separate counsel chosen by it and at its own cost and expense, in the defense of the Third Party Claim. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 10-of-pocket expenses as a result day period, (B) the Indemnifying Party shall fail to conduct such defense diligently, (C) the Indemnified Party shall reasonably determine that use of such assumption. The election of counsel selected by the Indemnifying Party to assume represent the Indemnified Party would present such control shall be made within ninety counsel with a conflict of interest, or (90D) days of receipt of notice of Claimthe Third Party Claim is for injunctive, failing which equitable or other non-monetary relief against the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such controlIndemnified Party, then the Indemnified Party shall have the right to be informed and consulted control the defense, compromise or settlement of the Third Party Claim with respect to the negotiation, settlement or defenses counsel of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless choice at the Indemnifying Party consents to the retention Party’s sole cost and expense. In any event, from and after delivery of such counsel or unless the named parties to any action or proceeding include both a Claim Notice, the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such controlshall, and shall cause their respective affiliates and representatives to, cooperate fully in connection with the Indemnifying defense or prosecution of any Third Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature , including furnishing such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal records, information and testimony and attending such conferences, discovery proceedings, the Indemnified Party hearings, trials and appeals as may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid be reasonably requested by the Indemnifying Party to the Indemnified Party, or the Indemnified Party shallin connection therewith. In addition, promptly after receipt the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the difference from status thereof and shall consider in good faith any recommendations made by the third party, pay the amount of such difference to the Indemnifying Partynon-controlling party with respect thereto.

Defense. (a) The Except as otherwise provided herein, the ------- Indemnifying Party shall have the rightmay elect to compromise or defend, at its such Indemnifying Party's own expense and at its election, by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim including the costs and expenses of the Indemnified Party incurred in connection therewith. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed and consulted with respect to represented by counsel selected by it. In such an event, the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the reasonable fees and disbursements of such a single counsel to the Indemnified Party shall be paid included in the loss suffered by the Indemnified Party unless in respect of such Third Party Claim. Whether or not the Indemnifying Party consents to shall have assumed the retention defense of such counsel or unless the named parties to any action or proceeding include both the Indemnifying a Third Party and Claim, the Indemnified Party and a representation of both shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party and the Indemnified Party by the same counsel would Party's prior written consent (which consent shall not be inappropriate due to the actual or potential differing interests between them (such as the availability of different defensesunreasonably withheld). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend Party shall have assumed the Claim within defense of a reasonable period of timeThird Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines, based on the opinion of its outside counsel, cannot be separated form any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability defense of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party portion relating to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partymoney damages.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnified Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and a representation of both the Indemnifying Party and may each participate, at its own expense, in the Indemnified defense of such Third Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Subject to the limitations set forth in this Section 9.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the rightright to elect to conduct and control the defense, at its expense and at its electioncompromise or settlement of such Third Party Claim, to assume control of the negotiation, settlement and defense of the Claim through with counsel of its choice. In such eventchoice reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s sole cost and expense, if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall reimburse provide indemnification to the Indemnified Party for all in respect thereof, and (ii) if requested by the Indemnified Party's reasonable out-of-pocket expenses as , has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (1) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within fifteen (15) days after the Indemnified Party has given a result Claim Notice thereof, (2) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (3) the Indemnified Party shall reasonably determine that use of such assumption. The election of counsel selected by the Indemnifying Party to assume represent the Indemnified Party would present such control shall be made within ninety counsel with a conflict of interest, or (904) days of receipt of notice of Claimthe Third Party Claim is for injunctive, failing which equitable or other non-monetary relief against the Indemnifying Party shall be deemed to have elected not to assume Indemnified Party, then in each such control. If the Indemnifying Party elects to assume such control, case the Indemnified Party shall have the right to be informed and consulted control the defense, compromise or settlement of the Third Party Claim with respect to the negotiation, settlement or defenses counsel of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If choice at the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, ’s sole cost and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyexpense.

Defense. Except as otherwise provided herein, in the case of any claim asserted by a Person that is not a party to this Agreement (a) The a "Third Party Claim"), an Indemnifying Party shall have the rightmay elect to compromise or defend, at its such Indemnifying Party's own expense and at its election, by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the an Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall promptly notify the Indemnified Party and any other Indemnifying Parties of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the applicable Indemnifying Party or Indemnifying Parties, in the compromise of, or defense against, such Third Party Claim. For so long as no Indemnifying Party elects to compromise or defend against the Third Party Claim, fails to notify the Indemnified Party of its election to do so, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against any applicable Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by an 59 65 applicable Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the applicable Indemnifying Party or Indemnifying Parties pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (iii) there is a conflict of interest between an applicable Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (iv) there are specific defenses available to the Indemnified Party which are different from or additional to those available to an applicable Indemnifying Party and which could be materially adverse to such Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of such their own counsel shall be paid by and one counsel to all the Indemnified Party unless Parties. Notwithstanding the foregoing, neither any Indemnifying Party consents to nor the retention applicable Indemnified Party may settle or compromise any claim over the objection of such counsel or unless the named parties to any action or proceeding include both the other Indemnifying Party and the that has any liability with respect to such claim or any other Indemnified Party that is a party to such claim; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by any Person. In any event, except as otherwise provided herein, any applicable Indemnified Party and a representation of both the any Indemnifying Party and that has any liability with respect to such claim may each participate, at its own expense, in the defense of such Third Party Claim without, in the case of such Indemnified Party by the same counsel would be inappropriate due Party, any right to the actual or potential differing interests between them (control such as the availability of different defenses)defense. If the an Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Indemnifying If a Third Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the is made against an Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which then the Indemnifying Party shall be deemed entitled to have elected not participate in the defense of the Third Party Claim and, if the Indemnifying Party so chooses, to assume such controlthe defense of the Third Party Claim. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim. If the Indemnifying Party assumes such controldefense, then the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses defense of such the Third Party Claim and to retain employ counsel, at its own expense, separate from the counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid employed by the Indemnified Party unless Indemnifying Party, it being understood, however, that the Indemnifying Party consents to shall control such defense, including any settlement or compromise of the retention of such counsel or unless the named parties to any action or proceeding include both Third Party Claim. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense of the Third Party Claim. Such cooperation shall include the retention and (upon the Indemnified Party and a representation of both Indemnifying Party’s request) provision to the Indemnifying Party of records that are reasonably relevant to the Third Party Claim and the Indemnified Party by the same counsel would be inappropriate due provision of access to the actual or potential differing interests between them (such as the availability employees on a mutually convenient basis to provide additional information and explanation of different defenses)any material provided. If the Indemnifying Party, having elected within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume such control, thereafter defense of the Third Party Claim or fails to defend the Third Party Claim within a reasonable period of timeactively and in good faith, then the Indemnified Party shall be entitled (upon further notice to assume such control, and the Indemnifying Party) have the right to undertake the defense of the Third Party Claim. The Indemnifying Party shall be bound by obtain the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability prior written approval of the Indemnified Party under before entering into any settlement of any Third Party Claim that does not include as an unconditional term the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid giving by the Indemnifying Party Person or Persons asserting such claim an unconditional release from all liability related to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of or associated with such difference claim (with such approval not to the Indemnifying Partybe unreasonably withheld).

Defense. (a) The Subject to the limitations set forth in this Section 7.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right, at its expense and at its election, right (exercisable by written notice to assume control the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the negotiationThird Party Claim) to elect to conduct and control, settlement and defense of the Claim through counsel of its choice. In such eventchoosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall reimburse provide indemnification to the Indemnified Party for all in respect thereof; provided, however, that the Indemnified Party's reasonable out-of-pocket expenses as a result Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such assumption. The election 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use of counsel selected by the Indemnifying Party to assume represent the Indemnified Party would present such control shall be made within ninety counsel with an actual or potential conflict of interest, or (90D) days of receipt of notice of Claimthe Third Party Claim is for injunctive, failing which equitable or other non-monetary relief against the Indemnifying Party shall be deemed to have elected not to assume Indemnified Party, then in each such control. If the Indemnifying Party elects to assume such control, case the Indemnified Party shall have the right to be informed and consulted control the defense, compromise or settlement of the Third Party Claim with respect to the negotiation, settlement or defenses counsel of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party consents to the retention Claim, from and after delivery of such counsel or unless the named parties to any action or proceeding include both a Claim Notice, the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such controlshall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the Indemnifying defense or prosecution of such Third Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature , including furnishing such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal records, information and testimony and attending such conferences, discovery proceedings, the Indemnified Party hearings, trials and appeals as may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid be reasonably requested by the Indemnifying Party to the Indemnified Party, or the Indemnified Party shallin connection therewith. In addition, promptly after receipt the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the difference from status thereof and shall consider in good faith any recommendations made by the third party, pay the amount of such difference to the Indemnifying Partynon-controlling party with respect thereto.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense and compromise of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention each of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both Party. Notwithstanding the foregoing, neither the Indemnifying Party and nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the same counsel would party settling or compromising such claim) over the objection of the other; provided, however, that consent to settlement or compromise shall not be inappropriate due to -------- ------- unreasonably withheld. In any event, except as otherwise provided herein, the actual or potential differing interests between them (Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such as the availability of different defenses)Third Party Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the results obtained by receipt of appropriate confidentiality agreements. Notwithstanding anything to the Indemnified Party contrary contained in this paragraph (b), in the event prompt action is required with respect to the Claim. If any Claim is defense of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedingsThird Party Claim, the Indemnified Party may make shall, subject to the terms and conditions of this Article X, have the right to assume the defense of such payment Third Party Claim; provided, however, that in the event that the Indemnifying Party subsequently -------- ------- elects to assume the defense of such Third Party Claim, then the provisions set forth in this paragraph (b) shall be applicable and the Indemnifying Party shall, after demand by subject to the Indemnified Partyterms and conditions of this Article X, reimburse indemnify the Indemnified Party for such payment. If the amount of any liability of costs and expenses incurred by the Indemnified Party under prior to the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by date the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount assumes control of such difference to the Indemnifying PartyThird Party Claim.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided in this Agreement, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse be reasonably satisfactory to the Seller Indemnified Party for all the or Buyer Indemnified Party's reasonable out-of-pocket expenses , as a result of such assumption. The election of the Indemnifying case may be), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within thirty (30) days after receiving notice of the Third Party Claim (ten (10) days if the Indemnified Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as provided in this Section 8.04, or otherwise abandons the defense of such Third Party Claim, (1) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (2) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses or claims available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses defense of such Third Party Claim and to retain counsel to act on its behalfwith such Indemnified Party's own counsel. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and one counsel to the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided in this Agreement, the Indemnified Party and a representation of both the Indemnifying Party and may each participate, at its own expense, in the Indemnified defense of such Third Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. If the Indemnifying Party elects not to assume the defense, is not permitted to assume the defense pursuant to paragraph (a), fails to assume the defense within thirty (30) The days from receipt of a Claim Notice, does not diligently defend the Third Party Claim or the Indemnifying Party shall have and any Indemnified Party are both parties to or subjects of such Legal Proceeding and a conflict of interest exists between the right, at its expense Indemnifying Party and at its election, to assume control such Indemnified Party which has the potential of materially and adversely affecting the interests of the negotiation, settlement and Indemnified Party in the defense of such Legal Proceeding, then the Indemnified Party may elect to defend the Third Party Claim through and employ counsel reasonably satisfactory to the Indemnifying Party to represent or defend the Indemnified Party against any such Third Party Claim and the Indemnifying Party will pay the reasonable fees and disbursements of its choice. In such eventcounsel (such expenditures to be reimbursed promptly after submission of invoices therefor); provided, however, that the Indemnifying Party shall reimburse not, in connection with any Action or separate but substantially similar Actions arising out of the Indemnified Party same general allegations, be liable for all the fees and expenses of more than one separate firm of attorneys at any time for any Indemnified Party's reasonable out-of-pocket expenses as a result of , except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such controlAction. If the Indemnifying Party elects to does assume such controlthe defense of a Third Party Claim, the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses defense of such Third Party Claim at its expense. If the Indemnifying Party does assume the defense of a Third Party Claim, the Indemnifying Party shall reasonably cooperate in providing information to and to retain counsel to act on its behalf, but consulting with the Indemnified Party about the Third Party Claim. The Indemnifying Party shall be liable for the fees and disbursements expenses of such counsel shall be paid employed by the Indemnified Party unless for any period during which the Indemnifying Party consents to has not assumed the retention defense of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Third Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Party.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satis- factory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indem- nifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice to any of its rights as against the Indemnifying Party), compro- mise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and ex- penses of the Indemnified Party incurred in connection there- with shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed and consulted with respect to direct the negotiation, settlement or defenses defense of such Third Party Claim and to retain counsel to act on its behalfwith the participation of the Indemnifying Party. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnify- ing Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; pro- vided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and a representation of both the Indemnifying Party and may each participate, at its own expense, in the Indemnified defense of such Third Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any per- sonnel or any books, records or other documents within its con- trol that are reasonably necessary or appropriate for such de- fense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, provided that the Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (ax) is asserted directly by or on behalf of a Person that is a customer or supplier of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party. The Indemnifying Party shall have be liable for the right, at its expense reasonable fees and at its election, expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume control of the negotiation, settlement and defense of a Third Party Claim, then the Claim through Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of its choice. In such eventThird Party Claim, the Indemnifying Party shall reimburse provide to the Indemnified Party for an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnified Indemnifying Party's reasonable out-of-pocket expenses as a result ’s assumption of the defense of such assumption. The election Third Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such control shall be made within ninety (90) days of receipt of notice of Third Party Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume assumes such controldefense, then the Indemnified Party shall have the right to be informed and consulted with respect to participate in the negotiation, settlement or defenses of such Claim defense thereof and to retain employ counsel to act on its behalfseparate from the counsel employed by the Indemnifying Party, but it being understood, however, that the Indemnifying Party shall control such defense. The fees and disbursements of such counsel shall be paid employed by the Indemnified Party unless shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party consents to the retention Party; or (B) there exists a conflict of such counsel or unless the named parties to any action or proceeding include both interest between the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would that cannot be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Partywaived, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by liable for the results obtained by reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party has not within ten (10) Business Days after receipt of an Indemnification Notice relating to a Third Party Claim, chosen to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further written notice) have the right to defend and, subject to Section 7.4(c), compromise or settle of such Third Party Claim or {W5975088.1} 33 consent to the entry of judgment with respect to such Third Party Claim, in each case at the Claim. If any Claim is cost and expense of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Party.

Defense. Except as otherwise provided herein, in the case of any claim ------- asserted by a Person that is not a party to this Agreement (a) The a "Third Party ----------- Claim"), an Indemnifying Party shall have the rightmay elect to compromise or defend, at its such ----- Indemnifying Party's own expense and at its election, by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the an Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall promptly notify the Indemnified Party and any other Indemnifying Parties of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the applicable Indemnifying Party or Indemnifying Parties, in the compromise of, or defense against, such Third Party Claim. For so long as no Indemnifying Party elects to compromise or defend against the Third party Claim, fails to notify the Indemnified Party of its election to do so, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against any applicable Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by an applicable Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the applicable Indemnifying Party or Indemnifying Parties pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (iii) there is a conflict of interest between an applicable Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (iv) there are specific defenses available to the Indemnified Party which are different from or additional to those available to an applicable Indemnifying Party and which could be materially adverse to such Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of their own counsel and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume control of such defense and shall pay the fees and expenses of counsel shall be paid retained by the Indemnified Party unless Party, if the claim over which the Indemnifying Party consents seeks to assume control (i) seeks non-monetary relief, (ii) involves criminal or quasi-criminal allegations, or (iii) involves a claim which, upon petition by the retention of such counsel or unless Indemnified Party, the named parties to any action or proceeding include both appropriate court rules that the Indemnifying Party and the failed or is failing to vigorously prosecute or defend. In any event, except as otherwise provided herein, any applicable Indemnified Party and a representation of both the any Indemnifying Party and that has any liability with respect to such claim may each participate, at its own expense, in the defense of such Third Party Claim without, in the case of such Indemnified Party by the same counsel would be inappropriate due Party, any right to the actual or potential differing interests between them (control such as the availability of different defenses)defense. If the an Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (A) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (B) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other, provided, however, that consent to settlement or compromise shall not be paid unreasonably withheld by the Indemnified Party unless and provided further, that if the sole settlement relief payable to a Third Party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party consents to may settle such claim without the retention consent of such counsel or unless the named parties to Indemnified Party. In any action or proceeding include both the Indemnifying Party and event, except as otherwise provided herein, the Indemnified Party and a representation of both the Indemnifying Party and may each participate, at its own expense, in the Indemnified defense of such Third Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the 57 Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense and compromise of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention each of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both Party. Notwithstanding the foregoing, neither the Indemnifying Party and nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the same counsel would party settling or compromising such claim) over the objection of the other; PROVIDED, HOWEVER, that consent to settlement or compromise shall not be inappropriate due to unreasonably withheld. In any event, except as otherwise provided herein, the actual or potential differing interests between them (Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such as the availability of different defenses)Third Party Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the results obtained by receipt of appropriate confidentiality agreements. Notwithstanding anything to the Indemnified Party contrary contained in this paragraph (b), in the event prompt action is required with respect to the Claim. If any Claim is defense of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedingsThird Party Claim, the Indemnified Party may make shall, subject to the terms and conditions of this Article X, have the right to assume the defense of such payment Third Party Claim; PROVIDED, HOWEVER, that in the event that the Indemnifying Party subsequently elects to assume the defense of such Third Party Claim, then the provisions set forth in this paragraph (b) shall be applicable and the Indemnifying Party shall, after demand by subject to the Indemnified Partyterms and conditions of this Article X, reimburse indemnify the Indemnified Party for such payment. If the amount of any liability of costs and expenses incurred by the Indemnified Party under prior to the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by date the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount assumes control of such difference to the Indemnifying PartyThird Party Claim.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other, provided, however, that -------- ------- consent to settlement or compromise shall not be paid unreasonably withheld by the Indemnified Party unless and provided, further, that if the Indemnifying sole settlement relief -------- ------- payable to a Third Party consents to the retention in respect of such counsel or unless the named parties to any action or proceeding include both Third Party Claim is monetary damages that are paid in full by the Indemnifying Party and such settlement includes an unconditional term releasing the Indemnified Party from all liability in respect of such Third Party Claim, the Indemnifying Party may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and a representation of both the Indemnifying Party and may each participate, at its own expense, in the Indemnified defense of such Third Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Indemnifying Party shall have the rightright to direct, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventown choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party shall reimburse the Indemnified Party for all not settle any matter without obtaining the Indemnified Party's reasonable out-of-pocket expenses as prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a result full release of the Indemnified Party or, regardless of the terms of such assumption. The election of settlement, if the Indemnifying Party disputes its liability with respect to assume such control shall be made within ninety (90) days of receipt of notice of the Third Party Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume the defense of any such controlclaim or proceed ing, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to be informed direct, at the Indemnifying Party's sole cost and consulted with respect to expense, through counsel of its own choosing, the negotiationdefense or settlement of any such action or proceeding; provided, settlement or defenses of such Claim and to retain counsel to act on its behalfhowever, but the fees and disbursements of such counsel shall be paid by that if the Indemnified Party unless assumes the Indemnifying Party consents to the retention defense of any such counsel or unless the named parties to any action claim or proceeding include both the Indemnifying Party pursuant to this Section 10.3 and the Indemnified Party and proposes to settle such claim or proceeding prior to a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due final judgment thereon or to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Partyforego appeal with respect thereto, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, then the Indemnified Party shall be entitled to assume such control, give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in and consent (which consent shall not be bound by unreasonably withheld) to the results obtained by settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party with respect to and if such dispute is resolved in favor of the Claim. If any Claim is Indemnifying Party by final, nonappealable order of a nature such that court of competent jurisdiction, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified party is required by applicable law Party's defense pursuant to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedingsthis Section 10.3(b), and the Indemnified Party may make such payment and shall reimburse the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party in full for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid all costs and expenses incurred by the Indemnifying Party in con nection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense shall pursue such defense diligently and promptly. The parties shall cooperate in 48 57 the defense of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall make available to the Indemnified Partyparty controlling such defense any books, records or other documents within its control that are reasonably requested in the Indemnified Party shallcourse of or necessary or appropriate for such defense, promptly after receipt of provided appropriate arrangements are made to safeguard the difference from the third party, pay the amount confidentiality of such difference to the Indemnifying Partymaterials.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed and consulted with respect to represented by counsel selected by it. In such an event, the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless to the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party Parties and the Indemnified Party and a representation of both provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full (subject to the Sellers' Basket or the WRF Basket, as applicable) by the same counsel would party settling or compromising such claim, the settlement or compromise includes a complete release of the other party or parties hereto and, in the case of a settlement or compromise by the Indemnified Party, the Indemnifying Party has abandoned the defense of such Third Party Claim) over the objection of the other, provided, however, that consent to settlement or compromise shall not be inappropriate due to unreasonably delayed or withheld. In any event, except as otherwise provided herein, the actual or potential differing interests between them (Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such as the availability of different defenses)Third Party Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such eventExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall reimburse the Indemnified Party for all be reasonably satisfactory to the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying ), any Third Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume compromise or defend such controlThird Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party in good faith states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be informed assume and consulted with respect to direct the negotiation, settlement or defenses defense of such Claim and to retain counsel to act on its behalfThird Party Claim. In such an event, but the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party and may settle or compromise any claim (however, if the sole settlement relief payable to a representation third party in respect of both such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party and if the settlement results in the full and unconditional release of all claims against the Indemnified Party by the same counsel would be inappropriate due person asserting such claim, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim in which case each party shall cooperate in providing information to and consulting with the actual or potential differing interests between them (such as other about the availability of different defenses)claim. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend the Claim within a reasonable period of timeany claim, the Indemnified Party shall be entitled make available to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) The Indemnifying As soon as practicable upon the receipt of any such claim, the Parties shall confer and decide which Party shall commence actions to defend such claim, or if the Parties shall defend such claim jointly. If the selected Party does not commence actions to defend such claim within [**] days after such agreement, then the other Party shall have the right, at its expense and at its electionbut not the obligation, to assume control of defend any such claim. If the negotiationParties fail to agree as to which Party shall commence actions to defend such claim, settlement and dispute resolution pursuant to Section 13.3 will result in failure by the Parties to meet a litigation deadline in a timely manner, then the Party that is the defendant may defend such claim, provided that the defending Party shall give written notice to the non-defending Party and shall consider comments by the non-defending Party in good faith. In any event, the non-defending Party shall reasonably cooperate with the Party conducting the defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such controlclaim. If such claim is solely related to the Indemnifying Party elects to assume such control435 Compound and/or the 055 Compound, the Indemnified Party Xxxxxxx shall have the right to be informed defend such claims and consulted with respect shall bear any cost and expenses of the defense of any such Third Party infringement claim and shall have sole rights to any recovery, and if such claim is solely related to the negotiationIdenix Compound, settlement or defenses Idenix shall have the right to defend such claims and shall bear any cost and expenses of the defense of any such Claim Third Party infringement claims and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties have sole rights to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses)recovery. If the Indemnifying PartyParties agree that a claim is related to the 435 Compound and/or 055 Compound, having elected to assume such control, thereafter fails to defend on the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such controlone hand, and the Indemnifying Idenix Compound, on the other hand, or the claim is not related to the 435 Compound, the 055 Compound or the Idenix Compound, but is related to any Collaboration Trial, Xxxxxxx shall bear [**] percent ([**]%), and Idenix shall bear [**] percent ([**]%) of any costs and expenses of the defense of any such Third Party infringement claim and shall share equally any recovery. Neither Party shall enter into any settlement concerning activities under this Agreement that affects the other Party’s rights or interests, including any admissions of wrongdoing, without such other Party’s written consent, not to be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations unreasonably withheld or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Partydelayed.